Family law actions are lawsuits – just like an auto accident claim or a criminal prosecution. Like all lawsuits, the parties to the suit are permitted and encour- aged to settle their disputes between them by mutual agreement (i.e., a settlement); but if the parties cannot reach an agreement, then the case is taken to court. Every good attorney will counsel their client on why settlement is a better option in the case, and here are some of the major reasons that every effort should be made to settle without trial.
In Florida, family law disputes are heard by a circuit court judge as the fact-finder; there are no jury trials in family court. At the most basic level, if parties to a divorce cannot agree on a settlement, they are leav- ing their case and their financial life up to a single person as a decision-maker. While circuit court judges are all lawyers who have received significant education and training to serve their role, they are still human.
When a new case is filed in court, the case is randomly assigned to one of two or three judges in the Domestic Relations division of the circuit court. Every two years or so, the judiciary has an opportunity to rotate to other divisions. This means that the judge assigned to your case may stay the same throughout the case, or the judge may change once or more, depending on the timing of when you filed and how long the action takes to get to trial. It is possible that a change in the judge may not pose any additional problem to a person’s case. But it also is possible that a party has multiple hearings with one judge, who becomes educated on that family; yet, when the trial date comes, a new judge is assigned, leaving the parties to start from scratch in presenting the facts of the case.
The second biggest risk factor in trial is the limited time in which each side has to present its case. Family law actions, especially divorce actions, require significant amounts of facts to be presented to the court. The court system is stressed to the limit with hearing and trial time. Lawyers feel pressure to underestimate their time requirements to get to court faster for their clients. When faced with a time shortage, however, the lawyers have to think on their feet and prioritize the presentation of facts to the judge. Facts inevitably will be missed. When this occurs, the judge cannot base a decision on information that is not presented.
Thirdly, trial, when done correctly, can be very expensive. Even the most experienced lawyers need time to prepare. Family law attorneys are ethically prohibited from taking cases on a contingency fee basis, so they bill clients for the time spent on the case. For each hour a lawyer spends in court, a good lawyer has spent at least two hours – or more – preparing. Trial lawyers have to be prepared not only for what they will say and present to the judge, but also a defense of what the other side may present, not to mention the planning for potential objections and presentation depending on the judge’s ruling on objections.
Finally, there are no guarantees in trial. No matter how good your attorney is, no matter how perfectly the facts you have line up with the law, there are no guaranteed results. The judge may not see the facts the same way. The other side may present additional unforeseen facts. A witness may not show up, or may not testify in the same manner as planned. Many things can happen to make the case run afoul. It is highly likely that the ruling handed down by the judge will be different than anyone imagined. A settlement allows for predictability in the result. Even if a litigant is left without everything they want, the give and take of settlement negotiation usually will ensure that each person has succeeded on at least one point. There are a few times when trial is necessary, and in those times, having an experienced lawyer is important, to minimize the risks to the largest extent possible. But even the best trial lawyer will caution their client to make every effort to settle their case, for their own good.